Strange Standards for the Supreme Court

Goodwin Liu is a 39-year-old professor at Berkeley Law School, whom President Obama has nominated to the Ninth Circuit Court of Appeals.  Like the vast majority of Obama appellate judicial nominees, Senate Republicans have filibustered him.

Is this because Liu is liberal?  Perhaps, but Adam Serwer says that the stakes are bigger:

The real reason Republicans are trying to block Liu is this: Because of his youth (he’s 39), intelligence and outlook, he’d be a tempting choice the next time a spot opens up on the Supreme Court. A Liu pick would delight Obama’s liberal base and — depending on who he replaced — potentially move a conservative dominated, corporate friendly court to the left for the first time in generations.

But Liu has to make it to the federal bench first. Republicans know that. And that’s why Republicans have rallied to block his nomination.

Serwer is not alone in making this argument, but I find it incomprehensible.  I see no reason why previous appellate court experience — or indeed, any judicial experience — should be a prerequisite for Supreme Court service.

Consider many of the best justices over the past century: Brandeis, Frankfurter, Jackson, Hughes (on the first run) Black, Warren, Murphy: none of them had previous judicial experience.  Justice Harlan had a few months on the Second Circuit, which hardly constitutes experience.  Indeed, I could argue that prior judicial experience is a strike against prospective justices: living in cloistered judicial chambers begins to narrow the vision and breed a kind of formalism that undermines the Court as an institution.

If Obama thinks that Liu should be on the Supreme Court, then he should nominate him at his next opportunity.  Somehow, I think that a tenured member of the Berkeley Law faculty with a distinguished record of scholarship and public service will be able to allay any fears about his ability to do the job.  And if Senators don’t like his politics, then a few years on the Ninth Circuit won’t change matters.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

11 thoughts on “Strange Standards for the Supreme Court”

  1. Obama’s most recent Supreme Court appointment, Elena Kagan, was never a judge, so this is a non-issue. As a matter of fact, Wikipedia reports, “On June 17, 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who had taken senior status in 1996. The Senate Judiciary Committee’s Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton’s term ended, her nomination to the D.C. Circuit Court lapsed, as did the nomination of fellow Clinton nominee Allen Snyder.”

  2. Coincidentally, Kagan was born April 28, 1960, so she, like Liu, was 39 when nominated for the court of appeals. Liu was born in October 1970, so he has since turned 40.

  3. Frank Murphy had previously been a Recorder’s Court judge in Detroit, and in that capacity presided over the famous case of Dr. Ossian Sweet. Sweet, a black physician, was tried for murder when shots were fired from his house on a mob of advancing white rioters. Clarence Darrow represented Dr. Sweet, who was not convicted — I cannot recall whether because of acquittal or because charges were withdrawn after the jury deadlocked.

    To your point, however, presiding over Recorder’s Court in the 1920s was a very different experience than presiding over a modern federal court. After leaving the bench, Murphy served as mayor of Detroit, governor of Michigan, governor-general of the Philippines, and Attorney General.

  4. @alkali — Good point about Murphy; I had forgotten that. An underrated justice, with an underrated career. Obviously, he had a lot experience than Liu generally, but it’s hard to say that his RELEVANT experience was judicial.

  5. “The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation.” This is why I fear liberals on the bench. It’s a simple document, very simple (the constitution). It’s also very direct in the authorities it gives to government.

    Interpretation very quickly becomes abuse. Abuse very quickly turns into removal of individual freedoms in favor of the biases of the dominant group. Is it too much to ask for a justice to respect the constitution, as it’s written? Liberals (and “conservatives” alike) often speak of “civil liberties” and “free speech” while secretly removing individual liberty through loose interpretation of the “general welfare” clause or the commerce clause. Or through blatent disregard for the constitution all together as we just saw in Indiana. Or, how about, for example, justice Sotomayor’s and Kagan’s stance on the second amendment? Both of these justices first defended 2nd amendment rights during confirmations, then directly voted against them in McDonald v. Chicago. I’d love an explanation as to what is unclear about the second amendment? What interpretation is there to be made?

    The problem is that it’s always biased. Sometimes it’s biased towards benefiting corporations, sometimes it’s biased towards collectivism. Interpretation is one thing. Interpretation to benefit any “class of power” does not support the over-arching purpose of individual liberty and pursuit of happiness. It simply destroys, complicates and ultimately divides the country into parties. This is where we currently are today.

    The reason liberals are scary on the bench, is that they generally believe in loose interpretation of the constitution. This interpretation will benefit their collective interests, not individual freedom. This is the reason America was designed to be a society which protects the Rights of the individual over the collective group or groups. The current liberal push however is to change that. The only way to move America into a country of collectivism (fancy word for communism) is to dismantle the constitution’s individual liberties and replace them with statist laws.

    This is why I fear anyone on the bench that considers the constitution and “open book”, especially when they are true believers and supporters of collective prosperity. When power is given to the few, whether that be corporations or government, individuals and feedom suffers. Milton, as usual, has it right What we have in America is not capitalism, it hasn’t been capitalism for many many years. What we have is statism and crony capitalism.
    This man is dangerous not only because he believes in open interpretation, but because he believes in open biased interpretation that makes government more powerful.

  6. Serwer is correct. Court confirmations are much more of a bruising affair now. If the right got much of the media to play along with the smears of Sotomayor, how much more can we expect with Liu? The line of attack writes itself: Obama is pandering to an ethnic group, no judicial experience mean an unqualified minority is getting a preference. etc. And the effect of racial pandering is cumulative– “can’t Obama *ever* appoint a more qualified white man?” It will be incredibly ugly, and it will cost the Democrats. Anything that can be done to defuse this somewhat should be done right now.
    Also, the Kagan example is truly not applicable: not only was she the current Solicitor General, but she’s white (being Jewish seems to be no impediment to confirmation).

  7. Wasn’t Hugo Black at one point early in his career also some sort of police court judge, like Murphy – and equally unimportantly?

  8. (Zasloff): “I see no reason why previous appellate court experience — or indeed, any judicial experience — should be a prerequisite for Supreme Court service…I could argue that prior judicial experience is a strike against prospective justices: living in cloistered judicial chambers begins to narrow the vision and breed a kind of formalism that undermines the Court as an institution.
    I agree. “The rule of law” names an important principle that most people can appreciate. Citizens can plan their lives and invest their wealth and time with a confidence directly proportional to the self-restraint that authorities exhibit through respect for the rule of law. James Wimberley made this point in his post “The Wall Street Favella”. Nominees don’t need specific legal training to appreciate this point. Economists get it. Game theorists get it. Evolutionary biologists probably get it. Stability requires fidelity to precedent, and that’s where legal training makes a difference.
    The second point, that the narrow experience of a life spent inside courtrooms leaves judges with limited information on which to base their judgments, applies equally or more so, however, to academics.

  9. (Zasloff): “Like the vast majority of Obama appellate judicial nominees, Senate Republicans have filibustered him.
    Cite? AP says otherwise:

    WASHINGTON – President Barack Obama lost his first vote on a judicial nominee Thursday, as Senate Republicans derailed the nomination of a liberal professor who leveled acerbic attacks against two conservative Supreme Court nominees – both now justices.

    Democrats fell short of the 60 votes they need to end a filibuster and give Goodwin Liu an up-or-down vote on his nomination to the San Francisco-based 9th U.S. Circuit Court of Appeals. Liu, a 40-year-old legal scholar at the University of California’s Berkeley law school, could someday be a dream Supreme Court nominee for liberals.

  10. Democrats note that Obama hasn’t had a lot of nominees confirmed, and since blaming Obama for this is simply inadmissible, assume they’ve been filibustered. When the real explanation is that he has been extremely lazy about nominating them in the first place.

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